The Case of Dr. Samuel Sheppard

The "third trial" — the civil suit to declare Sam Sheppard innocent rather than merely not guilty — started Jan. 31, 2000.

Even before the first witness was called, Judge Ronald Suster delivered two rulings that hurt the Sheppard estate's case. Neither was unexpected.

Suster would not let lawyer Terry Gilbert introduce evidence about Richard Eberling's 1984 murder conviction, or about other deaths of which Eberling could be suspected.

That's in keeping with the standard rule that a suspect must be tried on a specific crime, not on his past conduct in other cases.

The judge also allowed the state — represented by county Prosecutor Bill Mason — to introduce testimony from the 1954 trial transcript.

Gilbert argued that the Supreme Court had overturned Sheppard's conviction in that case, but Mason pointed out the reversal was because of pretrial publicity, not the trial testimony. Suster did refuse, however, to allow testimony from the coroner's inquest at Normandy School — the one at which the doctor had denied having an affair with Susan Hayes.

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Selection of the eight-member jury began Feb. 7. Since this was a civil trial, only three-quarters — six jurors — needed to agree on a verdict. However, the burden of proof was now on the plaintiff. Gilbert had to show Sheppard's innocence by a preponderance of the evidence.

F. Lee Bailey, the lawyer who won a "not guilty" verdict in the 1966 retrial, was the first witness on Feb. 14. He testified he remained convinced of Sheppard's innocence.

But on cross-examination, he declared, "I did not then or at any other time form a belief that Richard Eberling killed Marilyn Sheppard." He said he believed a woman killed her. He did not mention the name Esther Houk.

A friend and Marilyn's sister-in-law both testified that the Sheppard marriage was stable. This was to be contradicted later by a secretary for Mrs. Sheppard who said she was furious about a letter from Susan Hayes that she intercepted.

It was a pattern of contradiction that was to persist, with the state repeatedly calling witnesses to testify to the opposite of Gilbert's witnesses.

The next witness, a trauma expert, testified that Sheppard's injuries could not have been faked. That was contradicted when the state presented its case by noted neurologist Robert White.

Sam Reese Sheppard then told of his 11-year crusade to clear his father's name. ``My father's life was destroyed by the state of Ohio,'' he said. "Any son that would sweep that under the rug is not worth their salt as far as I am concerned."

Kathleen Dyal, the former Kathy Collins, repeated her statement that Eberling told her in 1983 he had killed Marilyn. "He said the bitch bit the hell out of him and he got her ring and someone else paid the bill for it,'' she testified.

Gilbert called Dr. Mohammed Tahir, the noted forensic scientist who had conducted 1997 and 1998 tests on the blood evidence. He said DNA indicated that none of the blood in the murder room was Sam's.

That included a spot on Sam's pants. It was also not Marilyn's, as previously thought. That indicated, Tahir said, the presence of a third person in the room.

He also said DNA consistent with Eberling's DNA was in the blood on the closet and in semen from Marilyn's vagina. An expert for the state would later contend that the blood evidence was too old to be of use, was contaminated and even if valid that thousands of Americans had the same type of DNA.

Psychiatrist Emmanuel Tanay said the murder was typical of a sexually sadistic assault, not a husband-wife slaying. A former FBI agent later testified it was typical of a domestic homicide.

Coroner Cyril Wecht of Pittsburgh said Cuyahoga County Coroner Samuel Gerber botched the 1954 investigation of the crime. State witnesses, including the present county coroner, defended Gerber. Gilbert later put in the record Gerber's 1966 admission that he had been wrong in saying a bloodstain on Marilyn's pillow came from a surgical instrument.

Gilbert called experts who said the evidence showed Mrs. Sheppard had bitten her attacker and badly scratched his arm, breaking her own fingernail. Eberling carried a scar on his wrist that could have been caused by the scratch. State witnesses later contended the broken fingernail was caused by a blow and so were her broken teeth.

A blood expert said the lack of blood on Sam Sheppard showed he had not been in the murder room and a blood spot on a closet door did not come from either of the Sheppards, indicating a third person was in the room.

He said Paul Kirk, the defense forensic expert in the second trial, had misclassified the spot as Type O rather than A positive (Eberling's type) because of its age. State witnesses later said Sam Sheppard had blood on his watch and old blood can still be correctly typed.

Gilbert also produced a police report indicating that detectives had decided the doctor was the killer after less than three hours.

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The defense — meaning the state of Ohio — began its defense on March 6. Mainly it consisted of experts who disputed, point by point, the testimony of plaintiff's witnesses.

Significantly, it also included the woman who in 1954 had been 24-year-old Susan Hayes — "pretty, slender Susan Hayes," the newspapers called her. Then she told the jury of her three-year affair with Sam and his talk of divorcing his wife to marry her.

She was strangely absent from the 1966 retrial, leaving jurors wondering what motive Sheppard might have had to kill his wife.

Now she was Susan Benitez, 68 years old and a grandmother of four. She agreed to testify on videotape on the condition it not be broadcast on television.

The tape showed her repeating her 1954 testimony. She said, "He loved his wife very much, but not as a wife. He was thinking of divorce, but he was sure his father wouldn't approve.''

Asked if she believed that Sheppard loved her more than his wife, she answered "No."

Also testifying for the defense — the state — was Jane Reese, Marilyn Sheppard's 92-year-old stepmother. She said Sheppard's brothers would not let her see him and threw up a cordon to protect him. She also said the 1954 trial, counter to Gilbert's contention, was orderly.

Phyllis Moretti said Sheppard had autographed a copy of his book for her in 1969 and when she wrote, "Did Sam do it?" had written the word "Yes" visible on the flyleaf. Gilbert scoffed at the suggestion that Sheppard, who had steadfastly asserted his innocence, would confess in an autograph.

Electrician Paul Gilbert testified that days before the murder, he had fixed a lamp for the Sheppards and replaced it on a table in the bedroom. The table was empty when police were called. Prosecutors suggested the lamp was the murder weapon.

The trial did explode two well-publicized charges, one by each side.

As to the Sheppard house having been wiped clean of fingerprints, Detective Grabowski testified that he found no identifiable fingerprints. The doorknobs and doorjambs were layered with prints and the etching of the athletic trophies made prints unreadable.

As to the pry marks that AMSEC had trumpeted as the "smoking gun" proving that there had been a break-in, Grabowski testified that they were actually on a basement door leading into a windowless crawl space.

Closing arguments were March 8. Gilbert described the long fight to clear Sheppard's name. "Because he lied about an affair doesn't mean he committed a murder," he said.

"Go to the science,'' he told the jury. "It's the science that tells you the truth." He called the DNA evidence "powerful and compelling.

"Give us justice, please," he pleaded.

In his summation, Prosecutor Mason repeatedly referred to Sheppard as a "Playboy of the Western World" who told an unbelievable story about the murder night.

He said the DNA evidence could be used to place 90 percent of Americans at the murder scene. Instead, he urged the jury to use its "reason and common sense."

The case went to the jury on March 13, 41 days after it began and 26 days after opening arguments. It was said to be the longest civil case in county history.

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At the 1954 trial, the jury had stayed out five days before finding Sheppard guilty. It was said to be the longest jury deliberation in Cuyahoga County history.

The jury at the 1966 retrial had needed only one afternoon to find Sheppard not guilty.

This time the jury was back in barely three hours. The bailiff handed the verdict to the judge, who read it. It was for the state, and it was unanimous, signed by all eight jurors.

Sam Sheppard had been found, as newspapers across the country put it, "not innocent."

Terry Gilbert gasped, and put his head in his hands. Sam Reese Sheppard held a tight smile. The two embraced.

Television, newspaper and radio reporters crowded around the principals outside the courtroom.

"That verdict we had today shows that the system of justice in this country does work," said Prosecutor Mason. "I think we have finally put this case to rest once for all."

Gilbert was dismayed that the jury had spent so little time looking at all the evidence it had received. He refused to criticize the judge's rulings that had limited his case.

Sam Reese Sheppard said, "The Sheppard family may be bloodied but we are unbowed." He maintained the evidence had shown his father's innocence.

Gilbert declared, "We will always hold our heads up high and know that we did the right thing."

Sheppard told the throng of reporters: "My father's life was destroyed by the state of Ohio. I will never forget that. I will never let you forget that."

Jane Reese, Marilyn Sheppard's stepmother, said she was glad she had testified for the state.

"I'm happy they got the right killer," she said.

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On Feb. 22, 2002 a three-judge panel of the Eighth District Court of Appeals rejected Gilbert's appeal of the verdict. They held that the case should not have gone to trial because only a person who has been incarcerated can file a wrongful imprisonment suit, and the right dies with him. That made arguments about the verdict moot and the judges did not address them.

The ruling was unanimous. Nevertheless, Gilbert and Sam Reese Sheppard said they would play their last card — an appeal to the Ohio Supreme Court. They faced long odds.

At least three Ohio Supreme Court justices were on record from 1998 as holding the same view as the Court of Appeals. The trial went forward because four others — including an acting justice named to replace Paul Pfeiffer — made the unusual decision that the issue of whether the trial should be held would be decided after the trial had been held.

The Energizer Bunny of murder cases was still going, but it was starting to slow down.

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The Sheppard murder filled the front pages of three Cleveland daily newspapers throughout 1954.

The Aug. 14, 2002, story was in The Plain Dealer, the only remaining newspaper of the three. It ran at the bottom of Page B3 under a two-column headline: "Sheppard Case Closed 48 Years After Murder." Few out-of-town papers bothered to pick up the Associated Press version.

The story said that the Ohio Supreme Court had, in a one-sentence ruling, refused to hear the appeal of the civil suit verdict. The ruling had actually been delivered a week earlier, but nobody had noticed. In effect, the court said what three —very likely, four — justices wanted to say two years earlier: that Sheppard's estate had no right to sue and the case should not have gone to trial.

Samuel Reese
Sheppard (AP)

Sam Reese Sheppard still insisted, "My dad was innocent." Lawyer Gilbert said he was grateful for "the chance to show the world the evidence" that Sheppard did not commit the crime.

"History will be the final judge," he said.

History was already stepping in. There had been two new books, one of which fingered a new suspect.